Court Rules That Video Can Live in the Cloud Part 2

Earlier today, I posted this article about the recent decision in the Cablevision appeal. After twittering the post, I got a comment from Anyanwu Law (@techlaw) noting the following:

I guess that’s Twitter’s limit on a direct message. Anyhow, what @techlaw is pointing out is that the Cablevision court took pains to distinguish time shifting from other shifting, and considered the technology behind Cablevision’s DVR in a great deal of detail to establish that they are not providing broadcast on demand. Instead, they literally copy the actual broadcast to a small, transitory buffer that can save content on demand. Cablevision’s customer’s can not go back in time and save from the beginning of a show — they can only start recording when they hit the record button.

That is admittedly very different from what my.MP3.com was doing. They stored the audio and streamed it on demand. So the services are similar in that they are both available only to established licensees of the content, but they are different in that Cablevision only provides time shifting, while my.MP3.com provided broadcast on demand.

Point taken, and I appreciate @techlaw’s comments. But I’m frankly skeptical that this difference will be clear to consumers in practice. When you use a Tivo, you have a sense have having recorded a show. Even if it has an always-on buffer and you can record back to the beginning of the show, you have a sense of recording the show. That changes once you’re telling Cablevision to record the show for you. At that point, the experience is of video on demand, and it will seem arbitrary that Cablevision can’t record from the beginning of the show. And then the analogy of “recording” will itself seem antiquated, and it will seem arbitrary that Cablevision can’t play from the beginning of the show.

You see, I’m of the opinion that a major reason why people largely don’t respect copyright law anymore is that copyright law traces distinctions that reflect offline and analogue technologies, distinctions that are no longer relevant from a practical perspective. For instance, the Second Circuit approves of Cablevision’s RS-DVR (Remote Storage DVR) because the constant buffer is very small, transitory and ephemeral.

However, the exemption in copyright law for ephemeral copies is already being co-opted to solve a digital age problem it was never designed to solve. The ephemeral copy exemption was introduced to allow radio station to prepare smooth playlists by making copies of music from records, in order to avoid cuing up each track.¹ In that context, I think the idea of an ephemeral copy reflected the real-world experience: the DJs couldn’t generally make copies, but they could make copies that they weren’t going to keep around.

But now the ephemeral copy exemption is being used for digital information, to permit transitory buffers holding only fractions of seconds and, in Canadian law at least, caches designed for network optimization. Some copying is permissible if can fit within this old tech exemption. As a result, buffering systems like Cablevision’s are carefully crafted to create only an ephemeral copy until the customer begins the recording. Surely it would be more convenient (convenience was, after all, the reason the exemption was introduced for radio) for both the cable carrier and the customer if the show could be played back on demand. But by being made to fit within the old exemption, it is no longer natural to the medium. The customer will not understand why the beginning of the show can’t be played back as well. The exemption, and the law, do not reflect the realities, the experiences of the consumer/prosumer.

Which brings me back to my.MP3.com. The reason this service was the first major application created in the cloud is that it makes so much sense in the new realities of a wired world. I already own that CD. If I can prove that I own it, then why shouldn’t I be able to play back the music whenever and wherever I want to? I could just bring the CD with me to work, but here we have technology that can save me the trouble of plastic discs and instead move my music to the cloud. And it could be done without the greater sea change that the music industry was still to confront with Napster and Bittorrent — after all, we still needed to verify our possession of the CD.

From the consumer’s perspective, the argument that Cablevision can only keep a very small, ephemeral recording in a buffer will not be very satisfying, and consumers will demand ways to get video on demand (as, indeed, Bittorrent downloaders already do).

So thanks to @techlaw for that comment. I’m going to look for a way to put comments on these blog posts. I don’t have them because I use PmWiki as the platform for this blog and I’m not happy with the comments extensions.